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30 March 2011

The Infringement Default

Although copyright protects certain creative works, that protection is limited with both statutory and doctrinal restrictions limiting the scope of the exclusive rights to copyright owners. These limitations allow persons to use copyrighted works in certain ways without the permission of whoever owns the copyright in those works. For example, it is possible that the copyright framework would allow for transformative use to be made of a work without the permission of the owner of the work, and it is certain that insubstantial use could be made of a work without authorisation so long as the use fell within the scope of “fair use”.

In a non-digital environment, these restrictions worked relatively well, and enabled the protection of both copyright owners and copyright consumers. However, when transferred to an online environment in the current climate the restrictions on the scope of the exclusive rights of copyright owners have become far less robust.

Given the prohibitive cost of defending allegations of copyright infringement, the three-strike policies prevalent in a number of jurisdictions, and (in countries like India) the lack of an explicit safe harbour for Internet/Online Service Providers, it has become prudent for intermediaries and other persons to assume that the use a copyrighted work without the permission of the copyright owner is illegal use or, in other works, that it amounts to copyright infringement.

This may be entirely untrue from a factual and/or legal point of view. Nonetheless, in order to avoid unnecessary hassle, many intermediaries employ software to identify the use copyrighted works in user generated content, and then proceed to assume that such use, if not explicitly authorised must be infringement.

Quite apart from flying in the face of the fact that use of a protected work does not always require authorisation from the author of the work, it sets up a dynamic where the use of a work is automatically assumed to be infringing.

In many instances, the use may be anything but infringing but there is often no framework within which such a claim may be successfully made, and that being the case, it leaves many forms of derivative works being treated as infringing works. While it may not be clear how this is fair from a philosophical point of view, from a practical point of view, it means that many derivative works such as remixes are automatically treated as infringing the original compositions which they include.

Given judgments such as that in the Australian Kookaburra case, from the point of intermediaries, it may be safe to make assumptions of infringement so as to shield themselves against any potential liability. (In the Kookaburra case, a Federal Court judge found, on February 4, 2010, that Men at Work's No.1 hit "Down Under" had reproduced a "substantial part" of the children's song "Kookaburra Sits in the Old Gum Tree", and that it had thus infringed the copyright in the Kookaburra song. It transpired that the "substantial part" copied was two bars of the flute riff in "Down Under". Even more strangely, the Australian the Kookaburra song wasn’t even an original composition: it was derived from an old Welsh Folksong although it was adapted to make it suitable for Australian children; while the Welsh song spoke of blackbirds, the Australian song spoke of kookaburras. As such, the Kookaburra case seemed to give ownership rights to the first person to write down a folk tune / write new lyrics to an old tune.)

As such, it appears that the only concrete justification for automated assumptions of infringement is prudence. However, it is unclear whether prudence would itself be justification enough for suppressing the dissemination of creative works in the guise of copyright protection.

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